Attorney General’s Reference No. 3 of 1992 2 All ER 121
Mens rea of attempted arson – Recklessness
Facts
Four men (D) threw a petrol bomb from a moving car, which hit a wall nearby four men in a parked car and two standing men. D were charged with attempted aggravated arson with recklessness as to whether lives are endangered, under section 1(2) of the Criminal Damage Act 1971 (1971 Act). The trial judge acquitted D, finding that recklessness as to whether life would be endangered as a result of the intended damage was insufficient to convict D of attempt under the 1971 Act. The judge ruled that D must have intended to not only damage property but also to endanger life to be convicted of attempted aggravated arson, as an attempted crime could not be committed without intent. The Attorney General referred the case to the Court of Appeal.
Issues
The issue in question was whether intent to endanger life was required for the attempted offence of attempted aggravated arson under the 1971 Act, or whether recklessness was sufficient.
Decision/Outcome
It was sufficient to prove D intended to damage property, and was reckless as to whether life would be endangered. The Court of Appeal followed R v Khan [1990] 2 All ER 783 which held that the mens rea for an offence and the attempted offence require identical mens rea. The completed aggravated offence of arson does not need proof of a specific intent to endanger life, rather it requires 1) intention to damage property and 2) recklessness as to whether the conduct endangered another’s life. D having both parts of this mens rea could therefore be convicted of attempted aggravated arson with the application of Khan.
Updated 19 March 2026
This case summary remains legally accurate. Attorney General’s Reference No. 3 of 1992 [1994] 2 All ER 121 is still good law. The principle confirmed in it — that the mens rea for an attempt mirrors that of the completed offence, meaning recklessness as to whether life is endangered suffices for attempted aggravated arson under section 1(2) of the Criminal Damage Act 1971 — has not been overturned. The reliance on R v Khan [1990] 2 All ER 783 remains valid; that case continues to be cited as authority for the proposition that the mens rea of an attempt is the same as for the full offence. The Criminal Attempts Act 1981, which governs the law of attempts, has not been amended in any way that affects the analysis here. Students should note that this area of law has been subject to academic debate, particularly regarding the interplay between intention and recklessness in attempt offences, but the legal position as described in this article has not been judicially displaced.
